Kidd v. Brewer

• Citation: 297 S.W. 960,317 Mo. 1047
• Decision Date: 16 September 1927
• Docket Number: 25901
• Parties: Peyton E. Kidd, Appellant, v. Joseph A. Brewer et al
• Court: United States State Supreme Court of Missouri

297 S.W. 960

317 Mo. 1047

Peyton E. Kidd, Appellant, v. Joseph A. Brewer et al

No. 25901

Supreme Court of Missouri

September 16, 1927

Appeal from Circuit Court of St. Louis County; Hon. J. W McElhinney, Judge.

Reversed and remanded (with directions).

Robert C. Powell for appellant.

(1) A written instrument will be reformed in equity to conform to the agreement and understanding of the interested parties, if there has been a mutual mistake made in the instrument. Kanan v. Hogan, 270 S.W. 646; Maze v Boehm, 281 Mo. 507; Dougherty v. Dougherty, 204 Mo. 228; Henderson v. Beasley, 137 Mo. 199; Sicher v. Rambousek, 193 Mo. 113; Bartlett v White, 272 S.W. 956. (2) A purchaser of certain premises is entitled to the reformation of a deed so as to convey to a line understood by the parties to be the boundary line at the time of the sale. Henderson v. Beasley, 137 Mo. 199. (3) The equitable remedy of reformation will not only be granted against the original parties and their heirs, but also as against their assignees, creditors, purchasers with notice and all others standing in privy. Sicher v. Rambousek, 193 Mo. 129. (4) One who has notice of a fact which ought to have put him on inquiry and which he might have discovered by using due diligence cannot claim to be an innocent purchaser without notice. Authorities under Points 2 and 3; Rhodes v. Outcalt, 48 Mo. 367; Association v. Arnett, 169 Mo. 201; Taafe v. Kelly, 110 Mo. 137; Mason v. Black, 87 Mo. 341. (5) To constitute a bona-fide purchaser it is necessary that such purchaser must have parted with value, and that he must have taken without notice, actual or constructive. Authorities, supra. (6) A quitclaim deed, given for the purpose of preventing a reformation and in fraud of the rights of those entitled to it, is not a good defense in a suit to correct a deed. Tabor v. Shattuck, 55 Mich. 370.

H. Chouteau Dyer for respondent Gregg.

(1) Respondent Gregg was a purchaser for value without notice. Story on Equity, sec. 165; Martin v. Nixon, 92 Mo. 35; Brown v. Gwin, 197 Mo. 499; Haley v. Bagley, 37 Mo. 363; Blumberry v. Mauer, 37 Tex. 1; Adams v. Stevens, 49 Me. 362; Dart v. Barbour, 32 Mich. 267. (2) The findings of the chancellor on conflicting evidence will not be disturbed on appeal. Tinker v. Kier, 195 Mo. 183; Huffman v. Huffman, 217 Mo. 182; Vaughn v. Vaughn, 251 Mo. 441; Walker v. Wallis, 186 S.W. 1041; Daudt v. Steiert, 205 S.W. 222. Even when the findings of the chancellor are slightly against the weight of the evidence, they will not be disturbed on appeal, except for plain error. Hunnell v. Zinn, 184 S.W. 1154; Creamer v. Bivert, 214 Mo. 473. (3) To warrant reformation of a deed in equity, the proof of mutual mistake must be clear and convincing and every presumption must be indulged in favor of the instrument as it is. Baumhoff v. Lochhaas, 253 S.W. 762; Chandler v. Hale, 268 S.W. 691; Frederick v. Henderson, 94 Mo. 98. (4) The facts in this case clearly do not warrant any imputation of notice to Gregg. Odle v. Odle, 73 Mo. 289; Dameron v. Lumber Co., 161 N.C. 495; Snyder v. Grandstaff, 96 Va. 473.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This is a suit to reform certain deeds upon the ground of mutual mistake in describing the property; and for the cancellation of a certain quitclaim deed made subsequent to the execution of the deed sought to be reformed, and to divest defendant Gregg of title to two strips of ground and vest title in plaintiff.

A general outline of what was done may best precede the statement of the particular attending circumstances, which govern in the determination of the case. As the case was brought and as between plaintiff and the defendant Gregg, there was immediately involved ownership of two strips of ground approximately five feet in width, parts of the west half of Lot 3 in Home Heights Subdivision, St. Louis County; but as the case stands upon appeal, the issue is as to only one of those strips. The north line of said Lot 3 of Home Heights Subdivision fronts on St. Louis Avenue. Lot 3 contains 6.88 acres. At the time of the beginning of the transactions forming the subject of this suit, said Lot 3 was owned by two men. One Kuhn owned what was spoken of as the east half of the lot, and the defendant Brewer owned what was spoken of as the west half of said lot. The west (Brewer's) half contained 3.50 acres, and the east half 3.38 acres. Kuhn is not a party to this suit, but the west line of his land, as fenced and occupied by him, enters into the acts of the parties in locating parts of the west half of the lot (Brewer's property), described in the deeds sought to be reformed. Kuhn's fence was on, or within, a few inches of the north-and-south center line. The north line of Brewer's property extended along the south line of St. Louis Avenue from Kuhn's northwest corner westward 255 feet and some inches. It extended south from the south line of St. Louis Avenue 575 feet, or 600 feet south from the center of said Avenue. Brewer's residence fronted on St. Louis Avenue, and his residence and outbuildings were situated on what, for convenience, may be spoken of as the northeast quarter of his property.

On August 9, 1919, Brewer agreed to sell and convey to plaintiff Kidd all of the west half of said Lot 3, except 125 feet in width of the northeast part. At that time he gave Kidd an earnest-money receipt, the property being described as all of the west half of said Lot 2, "except the east 125 feet fronting on St. Louis Avenue of said lot, with the improvements thereon, and extending south to within three feet of rear of barn thereon, or 300 feet north of the south line" (of said Lot 3). The part excepted and to be retained by Brewer was to have a frontage on St. Louis Avenue of 125 feet, beginning from Brewer's east line, or, the line between the property of Brewer and the property of Kuhn. The evidence, oral and written, makes that clear. All of the remainder of the west half of Lot 3 was to be conveyed to Kidd. Brewer and Kidd did not know the exact width of Brewer's property. Brewer and plaintiff's son took a tape line, started at Brewer's northeast corner, Kuhn's northwest corner, and measured off 125 feet west. They set stakes to mark the points. But, in the warranty deed from Brewer to Kidd, executed August 20, 1919, description in said deed was given upon the theory that the west half of Lot 3 extended east and west 250 feet, instead of approximately 255 feet. The deed did not describe the property by saying it was all of the west half of Lot 3, except a tract or part thereof, whose north boundary line ran 125 feet west from the northeast corner of Brewer's property, as was intended by Brewer and Kidd; but, the deed undertook to describe the property to be conveyed, by metes and bounds, and it took the northwest corner of Lot 3 as a beginning point, and proceeded upon the erroneous theory that the west line of the property to be excluded was distant 125 feet east from the west line of Lot 3, when in fact it was distant approximately 130 feet.

Under the description the deed failed to convey to Kidd a strip five feet in width along the west side of the land to be excepted, and failed to convey a strip five feet in width along and upon the east side of the west half of Lot 3, south of the property to be excepted. Thus, unknown to Brewer and Kidd, it left to Brewer a tract, or lot, approximately 130 feet in width from east to west, instead of 125 feet from east to west, fronting on St. Louis Avenue, and it also left standing in Brewer a strip of ground approximately five feet in width from east to west, extending from the south line of Lot 3, to the south line of the ground retained by Brewer.

In 1920, defendant Gregg bought from Brewer the property retained, or intended to be retained, by Brewer, and on September 7, 1920, Brewer and wife executed to defendant Gregg a warranty deed. The testimony tending to show what Brewer and Gregg intended will be referred to later. This deed to Gregg was so drawn as also to fix the northwest corner of the property of Brewer, the retained part to be conveyed, as being 125 feet east of the west line of Lot 3. Thus, as described in the deed from Brewer to Gregg, the north line was made to run from a point 125 feet east of the west line of Lot 3, "and thence, east, 125 feet and four and one-half inches, more or less, to the north-and-south center line of said Lot 3." The call of 125 feet and four and one-half inches did not reach the center line Brewer's line, by nearly five feet. On July 22, 1922, defendant Gregg caused the ground to be surveyed, and discovered that there was a strip of ground, approximately five feet wide, running from north to south on and along the entire east side of the west half of Lot 3, which the deeds made by Brewer did not cover. Immediately after Gregg learned that this strip had not been conveyed by Brewer, he induced Brewer to made a conveyance to him of this strip of ground. Brewer gave him a quitclaim deed, dated July 25, 1922. Therein the strip was described by metes and bounds as follows: "Beginning in the south line of St. Louis Avenue 250 feet four and one-half inches, more or less, east of the west line of said Lot 3, thence eastwardly four feet nine inches, more or less, to a point; thence south-wardly 575 feet, more or less, to the southern line of Lot 3; thence westwardly four feet nine inches, more or less, to a point 250 feet, four and one-half inches, more or less, east of the west line of said Lot 3; thence northwardly and parallel with the west line of said Lot 3, 575 feet, more or less, to the south line of St. Louis Avenue, the point of beginning." Gregg paid Brewer $ 25 for "his trouble." The trial court found that the...